LAWANI STEPHEN & ANOR v. PATRICK ABBA MORO & ORS
(2019)LCN/13825(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of October, 2019
CA/MK/EP/SEN/26/2019
RATIO
ELECTION PETITION: SECTION 138 (1) OF THE ELECTORAL ACT
The determination of this issue calls for a clear interpretation of Paragraph 4(1) (d) of the First Schedule to the Electoral Act, 2010 (as amended) which was made to enhance obedience to Section 138(1) of the Electoral Act (supra). It provides as follows:
4(1) An election petition shall
(a)
(b)-
(c)?
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.? (Emphasis supplied)
By the cardinal principle of interpretation, where the language and wordings of a statute are clear and unambiguous, Courts are enjoined to give the words their ordinary, natural and grammatical construction. The only situation where constructive interpretation of such clear words is called for is where such would lead to an absurdity or some repugnancy or inconsistency with the rest of the legislation – Uwazurike V AG Federation (2007) 2 SC 169.
Thus, in the light of the above provision, for an election petition to be competent, the following are mandatory requirements which must be stated in the petition, among other requirements:
1. The facts of the petition must be clearly stated;
2. The ground or grounds upon which the petition is based must be clearly stated; and
3. The relief(s) sought by petitioner must be stated.
The word ?shall? in this provision makes compliance mandatory. Needless to say that any petition which fails to state the above essentials in the manner stated is incompetent and the Court will have no option than too strike it out. See Isichei V INEC (2009) LPELR-4338(CA) 25.
In addition to Paragraph 4(1) (d) of the First Schedule (supra), Section 138(1) and (2) of the Electoral Act, 2010 (as amended) provides for the Grounds of a Petition as follows:
138. (1) An election may be questioned on any of the following grounds, that is to say:
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was lawfully excluded from the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.?
Section 138(1) (b) of the Act (supra) in particular has received judicial interpretation in an avalanche of decisions from this Court and the Supreme Court. See APC V Agbaje (2015) LPELR-25668(CA); Akpamgbo-Okadigbo V Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Ngige V INEC (2015) 1 NWLR (Pt. 1440) 281; Akeredolu V Mimiko (2014) 1 NWLR (Pt. 1388) 402; Oke V Mimiko (No. 2) 2014) 1 NWLR (Pt. 332); Gwede V INEC (2014) 18 NWLR (Pt. 1438) 56; PDP V INEC (2014) 17 NWLR (Pt. 1437) 525; & Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376. PER JUMMAI HANNATU SANKEY, J.C.A.
ELECTION PETITION: WHAT IS A GROUND IN ELECTION PETITION
By the authority of Kalu V Chukwumerije (2012) 12 NWLR (Pt. 1315) 425, 428, a Ground in the con of an Election Petition, is the fundamental reason, basis or justification for questioning the election. Therefore, by Paragraph 4(1) (d) of the First Schedule to the Electoral Act which provides that an election petition shall state the facts of the election petition and the ground(s) upon which the petition is based, the grounds of a Petition are jurisdictional as they define the confines of the challenge to an election. By the same provision, the grounds are to be set out separately from the facts to be adduced in support of the grounds. As aforesaid, Section 138(1) of the Electoral Act (supra) has been the cynosure of judicial attention and so has been interpreted in decisions from both the apex Court and this Court. The settled law is that Section 138(1) of the Electoral Act (supra) donates to a party the right to challenge an election on any of the listed grounds. See Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; PDP V INEC (2014) 17 NWLR (Pt. 1437) 525; Gwede V INEC (2014) 18 NWLR (Pt. 1438) 56; Oke V Mimiko No. 2 (2014) 1 NWLR (Pt. 1388) 332; Akeredolu V Mimiko (2014) 1 NWLR (Pt. 1388) 402; Ngige V INEC (2015) 1 NWLR (Pt. 1440) 281; & Akpamgbo-Okadigbo V Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. PER JUMMAI HANNATU SANKEY, J.C.A.
ELECTION PETITION: GROUNDS OF ELECTION PETITION UNDER THE ELECTORAL ACT: WHETHER HE IS COMPELLED TO USE THE WORDINGS OF SECTION 138(1) OF THE ELECTORAL ACT
By this decision therefore, a petitioner may use the wordings of Section 138(1) (supra) in setting out the grounds for bringing his petition. On the other hand, he is also at liberty to use his own words to couch the grounds for his petition. The only caveat here is that the grounds must be framed in such a way that the alleged infractions against the Manual or Guidelines made by INEC shall also be infractions against provisions of the Electoral Act. Thus, for instance, where a petitioner complains of non-compliance with the provisions of the Electoral Act and the Manual for Election Officials, 2019 or the Regulations and Guidelines for Election Officials, 2019, such infractions in the Manual and Guidelines must also constitute infractions against specific provisions of the Electoral Act in order for them to be valid. If they do not, then the complaint takes the ground outside the purview of Section 138(1) (b) of the Electoral Act. This is the purport of Section 138(2) of the Electoral Act (supra) which states clearly as follows:
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. LAWANI STEPHEN
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. PATRICK ABBA MORO
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the National and State Houses of Assembly Election Tribunal sitting in Makurdi in Petition No: EPT/BN/S/01/2019, delivered on 4th September, 2019, Coram: Adeleye, J., Ken-Eze, J. and Mamadi, Kadi.
In the Judgment, the Tribunal dismissed the Petition of the Appellants and affirmed the declaration and return of the 1st Respondent by the 3rd Respondent as the winner of the election to the Senate of the Federal Republic of Nigeria for the Benue South Senatorial District of Benue State in the aftermath of the election which held on the 23rd February, 2019. The Appellants were the Petitioners at the Tribunal, while all the Respondents at the Tribunal are still Respondents to this Appeal.
?A summary of the facts leading to the Appeal are as follows: The 1st Appellant and the 1st Respondent were both candidates sponsored by their respective Political Parties for the election to the Senate of the Federal Republic of Nigeria for the Benue South Senatorial District of Benue State. The election was conducted on 23rd February, 2019 by the
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Independent National Electoral Commission (INEC), the 3rd Respondent herein. While the 1st Appellant was sponsored for the election by the 2nd Appellant, the 1st Respondent was sponsored by the 2nd Respondent.
The result of the election in Exhibits P56 and P57 showed that the 1st Respondent scored the majority of lawful votes cast at the election, while the 1st Appellant came second. In actual figures, the 1st Respondent polled a total of 85,162 votes while the 1st Appellant polled 47,972 votes. In effect therefore, the 1st Respondent defeated the 1st Appellant by 37,192 votes. Exhibit P56 is the Senatorial District Final Collation of Result Form EC8D (i), while Exhibit P57 is the Form EC8E (i), the Senatorial District Declaration of Result Form.
The Appellants challenged the return of the 1st Respondent vide a Petition which they filed on 15th April, 2019. The Appellants’ grounds for the Petition are contained in paragraphs 22 and 23 of the Petition. The Appellants sought nine reliefs, five of which are declaratory in nature, and four were prayed in the alternative.
The 1st Respondent filed his Reply to the Petition on 24th April, 2019 and same
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was served on the Appellants on 25th April, 2019. The 1st Respondent’s Reply to the Petition was the last Reply of all the Replies the Respondents filed in response to the Petition. On 29th April, 2019, the Appellants filed a Petitioners’ Reply to the Reply of the 1st Respondent and same was served on the parties. On 3rd May, 2019, the Appellants (i.e. Petitioners) applied to the Secretary of the Tribunal for the issuance of a Pre-hearing Notice as in Form TF007/TF008, to kick-start the Pre-hearing Session.
Thereafter, by a Motion on Notice filed on 17th May, 2019, and brought pursuant to Paragraphs 47(2) & (3) and 16(1)(a) & (b) of the First Schedule to the Electoral Act, 2010 (as amended), the 1st Respondent challenged the competence of the Petitioners’ Reply to the 1st Respondent’s Reply and urged the Tribunal to strike it out on the ground that the entire contents of the Petitioners’ Reply were mere repetitions of issues of fact which the Petition itself had already dealt with, when the 1st Respondent’s Reply had not raised any new issues as to warrant a Petitioner’s Reply.
?
Further, the 1st Respondent prayed the Tribunal to, after
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striking out the Petitioners’ Reply, deem that pleadings actually closed on 25th April, 2019 when the 1st Respondent’s Reply to the Petition was served on the Petitioners. Finally, the 1st Respondent prayed the Tribunal to dismiss Petition as abandoned, the Appellants having failed to apply for the issuance of a Pre-hearing notice as in Form TF007/TF008 within 7 days after the filing and service of the 1st Respondent’s Reply on the Petitioners.
The 1st Respondent’s Motion on Notice was argued during the Pre-hearing session on 24th May, 2019 and Ruling thereon deferred by the Tribunal to be delivered along with the Judgment in view of Paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) and Section 285(8) of the Constitution.
On its part, the 2nd Respondent also filed and argued a Motion on Notice dated 14th May, 2019 challenging the competence of the two grounds of the Petition and urging the Tribunal to strike out/dismiss the Petition on that score. Ruling on the application was also deferred to be delivered along with the Judgment.
?
At the hearing of the Petition, the Appellants called a total of eleven (11)
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witnesses and tendered several documentary exhibits marked Exhibits PI-P59, the 3rd Respondent called one witness while the 1st and 2nd Respondents did not call any witness, but rested their respective cases on the case put forth by the Petitioners.
In a considered Judgment delivered on 4th September, 2019, the Tribunal dismissed the Petition on the merit and affirmed the election of the 1st Respondent. Before doing so, it had also ruled on the Motion on Notice filed by the 1st Respondent on 17th May, 2019, struck out the Petitioners’ Reply to the 1st Respondent?s Reply to the Petition as an incompetent and unnecessary pleading, and di
